Be careful what you wish for

I was having a late night snack at La Cachette last week (it was underwhelming to say the least since I had to send back the bisque) with a friend and we were discussing the law, and a question I get asked about weekly, the 10-year rule on spousal support in California.

Alimony is the great fear of every working spouse who has a non-working spouse. It used to be just a man’s concern. Not anymore. Men can be the recipient of spousal support just as much as women can.

Here’s a situation. He’s 57, she’s 54, they have a good time together. One week it’s the theater, the next it’s a bike ride and picnic. They’re both old enough, and have seen enough to know that today is what matters because tomorrow can disappear quickly.

After a few months of serious dating, “the talks” start. She drops a hint about wanting a long-term commitment. Her friend just got re-married. “Wouldn’t it be great to know we had a secure future together?” she asks. They get married.

This is a wonderful thing, people finding each other and forming a loving, lasting relationship that will carry both of them through the end of their days.

The law in California is pretty clear on this issue, if you are married more than 10 years, the court can retain jurisdiction over how much alimony you are paying, for the rest of your life.

These days men and women are working later in life, sometimes out of necessity, sometimes out of boredom. For the non-working spouse, that’s a great thing, because it means that the higher income will be used to determine lifetime spousal support.

She’s a healthy, active lady, who still likes to go bike riding and hiking. Eight years later and he’s had a heart attack, stays home most days and wants alimony for the rest of his life. He wants to keep up the lifestyle that he has become used to, he just wants it without her, so he’ll wait the two years and then take her money.

In the case I described above, after 10 years and two months, he files for divorce.

A sad but true tale of late life marriage. She’s on the hook for a lifetime of alimony. Ten years is going to cost her about 14 years of paying for his theater tickets, his mortgage, and his daily bottle of wine. Can a pre-marital help prevent this? Yes. A properly drafted pre-marital, sometimes called a pre-nuptial agreement, can prevent a person from having to pay alimony for the rest of their life.

Why does California make someone pay alimony at all is also a question that I often get asked. The reasons for spousal support are outdated in some ways, but realistic in others. The law looks at marriage like a partnership, where two people are building a life together, and if that partnership breaks down, then there needs to be an equal division of the benefits of that partnership.

The property of the partnership — homes, boats, cars, stocks — can be easily divided, but the opportunity costs of being in the marriage are harder to divide. Traditionally, the man was working on his career while the woman was making the home. His opportunity for career advancement was enhanced because she was taking care of the home life.

Alimony was the way the courts would balance out the fact that he had a better career and greater opportunity for making money, because of her contributions to his life. In the Ozzie and Harriet world of the ‘50s and ‘60s, she was raising the kids, while he brought home the bacon. She needed to be provided for in that world because she didn’t have as many opportunities to be self-sufficient.

The facts of life have changed because of the feminist movement. Thanks to a balancing of women’s opportunities as they have entered the workforce, they can now look forward to the same obligations as men.

Nowadays, with more women making equal pay, and frequently greater pay than their husbands, the spousal support rules are allowing men to be the recipient of alimony. He can marry well, and get used to a certain lifestyle, and if the marriage breaks down, he has a right to expect that lifestyle to continue, sometimes for the rest of his life.

When the 54-year-old lady was dropping hints about marriage, she may have been thinking about alimony. After all, she’s not stupid. But it never occurred to her that she’d be the one having to pay. This is one more time where the law of unintended consequences kicks in, and now she’s on the hook for a lifetime of alimony.

David Pisarra is a family law attorney focusing on father’s rights and men’s Issues in the Santa Monica firm of Pisarra & Grist. He can be reached at dpisarra@pisarra.com or (310) 664-9969.